Basic Facts of Bail / Bond

The Basics

Your attorney will need to know some facts in order to argue for bail/bond. If you are showing up for court on your own, pursuant to a ticket, warrant, or order, then the fact that you showed up speaks well for you. If you are in custody then it will be more difficult. This varies dramatically from jurisdiction to jurisdiction. Some jurisdictions rarely, if ever give bail in a homicide case. That is not true in Wisconsin. Some jurisdictions require cash bond from nearly everyone or everyone not from the community. Many don't. Bond varies from "O.R./P.R." (Own recognizance or personal recognizance), where you are released on a promise to appear for future proceedings; to a signature bond, which may have a monetary value attached, say $500.00. In which case you don't have to post any money up front, but if you fail to show up, you forfeit the bond and owe the Court that amount of money. The most stringent requirement is to post cash, (or sometimes they take credit cards).

Factors in Determining Bail

You are usually allowed a phone call at the appropriate time to call someone to "bail you out." Often there is no argument or objection by the prosecution to an O.R. release or a signature bond. But your attorney may need to know some facts to help him argue for a lower bond. These would include: your previous criminal record, or lack thereof; the time that has passed since you did commit a previous offense; if you successfully completed probation or parole; your job status; your family status, especially if you are responsible for taking care of children; and anything else that tends to indicate that you will show up for future proceedings. Bail/Bond is supposed to depend on only two factors: 1) The likelihood of the defendant returning to Court as ordered and 2) The potential harm to the community while free on bond. Often other factors are considered, such as the seriousness of the alleged crime, but they are not supposed to be, and a good attorney will argue that.

If You Don't Have an Attorney

If you don't have an attorney, you need to get one-- the sooner the better. However, it is not uncommon for defendants to be forced to deal with some of these preliminary matters themselves. If you are representing yourself, be prepared to bring up any mitigating factors as mentioned in Step 2. But wait for the Court to ask. The DA may not object to lenient terms and you may not have to make any arguments.

Conditions of Bail

Be prepared for conditions of bail. These typically include: no contact with the alleged victim or witnesses; no further violations of the law, (something we are all supposed to be doing anyway); possibly complete sobriety, especially if the charge involves drugs or alcohol; an alcohol assessment, (in those same types of cases); restrictions on driving; periodic, even daily reporting to some official; possibly an ankle bracelet linked to a phone or GPS. There could be others; the judge has wide leeway in setting conditions. Be sure that you understand all the conditions before you leave, so that you don't accidentally violate one and get yourself in further trouble.

Violating Bail Conditions

Violating the conditions of your bail is technically known as "bail-jumping," even if the condition you violated had nothing to do with fleeing the jurisdiction. If you do violate a condition, not only will your bail likely be revoked and you will forfeit any money put up, but you will also likely have to sit in jail for a while, (possibly until the case is concluded). If you are very lucky and the violation is minor in the judge's opinion, or accidental, you bail may not be revoked. However, do not count on this. Again the judge has wide latitude to lock you up for any violation of the stated conditions. Although he may choose to only lock you up until your hearing when you can explain yourself or for some short period of time. If so, consider yourself extremely lucky as you could be sitting in jail for months, awaiting trial.

Remand

In some Jurisdictions, (probably most famously New York and California), bail is almost never granted in the most serious cases, such as first degree homicide, (or any degree of homicide for that matter). Contrast that with other states such as Wisconsin where bail is routinely granted in homicide cases if the facts indicate the defendant is unlikely to flee. Although release on bail is not supposed to be contingent on the alleged facts of some heinous crime that you are still presumed innocent of, the reality is, the offense matters. Besides the two factors that the Court is supposed to base bail decisions on, particularly violent, sickening, perverted or infamous crimes will likely lead to a "remand to custody," which essentially means "sit in jail." Even among homicide cases, the more gruesome the facts and the more publicity, the more likely it is you will be remanded. Crimes against children and sex crimes also stir up lots of emotion, which tends to sway judges and DA's.

Amount of Bail

Even when bail is granted the amount of money that the Court requires as security to ensure your appearance varies dramatically from Jurisdiction to Jurisdiction. There are many states in which virtually any felony will mean bail of at least 10's of thousands of dollars, if not much more. And that is if bail is granted at all. And even the most minor charge for a first offender will still demand thousands of dollars. On the other hand, there are jurisdictions where the majority of defendants are released on O.R. or a signature bond without actually having to post any cash. And even the largest signature bonds are unlikely to be for more than a few thousand dollars. Here in Wisconsin, it is a rare defendant without a long criminal record that isn't given at least one opportunity to make bail and prove whether they can comply with the conditions, unless there are extreme mitigating facts like attempts to intimidate or harm witnesses or actual attempts to flee the jurisdiction.

Bail Bonds

In many states bail bonds are not only common, but virtually required in almost every case. At the other extreme are those states that ban the practice of bail bonding. The general rule is that the bondsman requires 10% of the actual bail amount to be posted with him and he in turn posts that along with the remaining 90%, with the court. The catch is that the 10% is non-refundable even if you are completely compliant with all conditions and make every court appearance. It is essential the bondsman's fee for the loan. However, logic dictates that once the money is non-refundable to the defendant he no longer has any financial incentive to show up for Court. Therefore bondsmen are essentially forced into the "bounty hunter" business, because it is their money that is forfeited if the defendant flees. The only way to get their money back is if the bondsman tracks down and physically brings the defendant back to court.

Other Financing

Some jurisdictions have split the difference between banning bail bonds and essentially requiring them. These places have basically gone into the bonding business themselves and judges may set a bail figure, say $100,000 and then offer a "10% cash alternative." Thus the defendant can actually post only $10,000 to secure his release. Some jurisdictions allow friends and family to post bail money or even property such as jewelry or real estate for the defendant. Other jurisdictions attempt to ensure that the money or property is really that of the defendant on the theory that someone may flee if it is not his money that will be forfeit, but rather that of friends or family.

Bail Enforcement Agents or "Bounty Hunters"

As I noted, where there are bail bondsmen, there are bondsmen who have been skipped out on and the only way for them to get their money back is to track down and return the defendant. The people who do this are typically called "Bail Enforcement Agents" or more commonly, "Bounty Hunters." In some states these people are licensed and regulated similarly to private investigators. Other states have few if any regulations regarding these people, who often attempt to take advantage of that and either actively deceive people into believing they are law enforcement or at least don't correct the impression that they are in fact legit law enforcement. They often pick up used police cars like Chevy Impalas or Ford Crown Victorias, dress like undercover cops and posture like them as well. They may carry handcuffs, other tactical equipment, and often concealed weapons, whether or not licensed. In response some states have banned private Bounty Hunters entirely.

Lessons to be Learned

Bail conditions and amounts vary dramatically from place to place for similar offenses. If you are charged with anything remotely serious, (and even for some things that don't initially seem all that serious), you definitely need to hire a good local lawyer who knows the lay of the land and can: 1) advise you of what is likely to happen, so that you will be as prepared as possible, 2) be aware of local resources so that you don't have to turn to disreputable sources for funds and 3) know what arguments work in that locality to convince judges that bail should be granted and that it should be reasonable. If you are in this situation, good luck.